M.Ayesha And Others vs Andaman And Nicobar Administration And Others

This case has a long history.

It relates to a land bearing Sy.No.142/2 of an area of 4.53 hectares, situated at Kodiyaghat village under Port Blair Tehsil, at one point of time. The appellants' father was one T.Moideen son of Late Cheku of Calicut, now deceased. There are two persons with identical names. So the reference to Moideen's parentage is very important.

We are shown the following documents by Mrs. Nag for the appellants:

(1) A copy of the order dated 2nd December, 1961 of the Deputy Commissioner of this island stating that 10 acres of land had been allotted to the said cultivator.

(2) An extract from the Register Khatauni, Kodiyaghat relating to land rent for the subject land issued on 20th May, 1962 paid by the cultivator - the father of the appellants.

(3) The documents dated 20th June, 1963 and 3rd October, 1962 evidencing grant of loan in favour of the said cultivator by the Andaman and Nicobar Administration.

On 4th April, 2014, in a writ application filed by one of the appellants T.Mohammed (W.P. 80 of 2014), this Court passed an order directing the respondent authorities to supply to him "record entry and sketch map" of the subject land. This Court directed if no such land record was furnished a reasoned order ought to be passed by the Administration.

On 29th September, 2014, the Tehsildar, Port Blair made a decision saying that no land records were available in favour of the appellants' father.

Mrs. Nag places before this Court an undated report of the same Tehsidlar prior to making the aforesaid decision where he expresses the following opinion:-

"8. In view of the above facts and based on the documents, it establishes that 4.05 hects (10 acres) of agricultural land and not 4.53 hects as mentioned in the writ petition was allotted in the name of Shri T. Moidu S/o Checku R/o Calicut village during the year 1962 in Rangachang village now falls in Bimblitan village along with others but his name did not reflected/entered for all these years in the revenue records erroneously for the reasons stated above which also resulted non-realisation of land revenue from him. This is an error occurred during the preparation of new land records specially due to an omission occurred because of overlapping village boundaries of three villages Rangachang, Kodiyaghat and Bimblitan at the time of re-survey by the settlement wing of District Administration. This error can be corrected by the Deputy Commissioner under the provisions of section 87 of A & N Islands Land Revenue & Land Reforms Regulation, 1966."

Another writ, preferred by the appellants followed (WP 140 of 2015). It was disposed of on 7th April, 2015 by this Court by the following order:

"The claim of the petitioners is based on the documents annexed to the writ petition which, inter alia, includes a land record purportedly issued in favour of the petitioners' father in terms of a sanction granted by the Deputy Commissioner vide order dated 2nd February, 1961. The issue raised by the petitioners, therefore, requires examination.

In view of Regulation 65 extracted supra, it is the Chief Commissioner, now the Lieutenant Governor, who can exercise power as ordained therein by directing the Deputy Commissioner appropriately.

The Lieutenant Governor, accordingly, may proceed to examine the petition filed before him by the petitioners and determine as to whether any case for exercising the power conferred by Regulation 65 of the aforesaid Regulation has been set up or not. In the event a positive finding is returned by the Lieutenant Governor, appropriate follow up stepsin accordance with Regulation 65 shall follow; on the contrary, if a negative finding is returned, the order shall be supported with reasons and communicated to the petitioners.

Let this exercise be completed as early as possible, but not later than three months from the date of receipt of a copy of this order.

Needless to observe, the petitioners shall be entitled to pursue their remedy in accordance with law before the appropriate forum, in the event the Lieutenant Governor holds against them.

The writ petition stands disposed of with the aforesaid directions, without any order for costs.

No opinion is expressed on the merits of the petitioners' claim and all points are left open."

Another exercise was undertaken by the Deputy Commissioner in terms of the said order of this Court dated 7th April, 2015.

The facts that would be evident on perusal of the proceedings are that at a certain point of time the village Kodiyaghat, where the appellants' father resided became a non-existent revenue village, after merging with Rangachang, Bimblitan and Chidyatppu villages. After amalgamation, demarcation of the land, survey and revision of land records were not undertaken. The appellants' name does not figure in the land register of the new settlement on amalgamation.

In 1989, the sons of T. Moideen were allotted an area of one hectare in Sy.No.255/8 at Bimblitan Village on the basis that they were pre-1978 encroachers.

On the basis of absence of records, the Deputy Commissioner by his order dated 12th June, 2017 refused to entertain the claim of the appellants. It was affirmed on appeal, by the Secretary (Revenue) stamped on 1st November, 2018.

The sons and daughters of T. Moidu preferred another writ in this Court (WP 109 of 2019) against the determination of the said authorities. It was dismissed by this Court on 11th June 2019 by the following order:-

"The petitioners have not been able to produce any document showing allotment of different plots of land to them directly and not to their father in support of their submissions that the petitioners' plots of land are in a different village and not in the village where land was allotted to their father.

In the facts and circumstances of the case and on perusal of the order dated 12th day of June, 2017 and the appellate order dated 1st day of November, 2018 I do not find any reason for which the writ court can interfere in this matter.

By an order dated 27th March,2019, direction was given to the respondents to file affidavit-in-opposition which they have not filed.

As disputed questions of fact are involved in the matter, the writ court is not the proper forum to adjudicate it as without adducing evidence the matter cannot be adjudicated.

With this observation, the matter is disposed of."

We are unable to agree with the reasons advanced by the learned Single Judge. The documents tabulated above, prima facie show very strongly that the appellants' father had a substantial claim to have been in possession of the said land at Kodiyaghat, at the material pont of time -1961.

Secondly, the Tehsildar in paragraph 8 of his said report had acknowledged this position.

Admittedly, this village amalgamated with Rangachang, Bimblitan and Chidiyatappu villages at a point or points of time not clearly known to this Court.

In this process, the land records of Kodiyaghat became unavailable.

Land survey, demarcation, settlement etc of the new settlement were not undertaken.

On these facts, it was mandatory on the part of the Administration to make a settlement in terms of Regulation 65 read with Regulations 49, 50, 51, 53 and 62 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. Without making this settlement and considering the right of the appellants' father and thereafter the appellants, it was not proper on the part of the Administration and its land officers to throw out the appellants again and again for unacceptable reasons in spite of several orders passed by this Court in previous writs.

We are of the opinion that the Administration through the Secretary (Revenue) and the Deputy Commissioner should jointly but under the superintendence of the Secretary (Revenue) immediately take upon themselves this task of making a settlement of Kodiyaghat village prior to its amalgamation with Rangachang, Bimblitan and Chidiyatappu and thereafter revise the settlement and publish the land records in respect of these amalgamated villages. While doing so the rights of the appellants' father T.Moideen son of late Cheku of Calicut has to be determined. A reasoned decision after hearing the appellants and other necessary parties has to follow within six months of communication of this order.

We make it absolutely clear that in case the appellants succeed in their claim, they have to surrender the benefit received as pre-1978 encroachers, before receiving any benefit under the decision to be made in terms of this order.

We order accordingly.

We set aside the judgment and order under appeal dated 11th June, 2019 as also the order of the Secretary (Revenue) dated 1st November, 2018 together with the decision of the Deputy Commissioner dated 12th June,2017.

The appeal (MA No.040 of 2019) is allowed.